New Federal Guidance: Prisons and Jails Cannot House Transgender Prisoners by Anatomy
The National Center for Transgender Equality (NCTE) and Just Detention International (JDI) applaud new federal guidance on housing transgender prisoners under the Prison Rape Elimination Act (PREA). The new guidance, posted online today by the National PREA Resource Center, sends the clearest message yet that current housing practices in prisons and jails are in violation of PREA and put transgender people at risk for sexual abuse.
The PREA standards require that housing decisions for transgender prisoners be made on a case-by-case basis. The new guidance makes clear that housing transgender people based solely on sexual anatomy is not “case by case.” Instead, detention facilities must seriously consider all factors relevant to keeping a person safe, including their gender identity, the gender they live as, and their own view of where they would be safest.
Safety is paramount. Based on its groundbreaking National Inmate Surveys, the Bureau of Justice Statistics has found that over a third of transgender prisoners are sexually abused in a given year. By comparison, only 4 percent of the general prison population reported being sexually abused.
“This guidance states what should be obvious, except almost all our state and local governments are getting it wrong,” said NCTE Executive Director Mara Keisling. “Housing transgender people based on body parts rather than who they are is dangerous and at odds with PREA. That means housing someone as the gender they live as has got to be on the table every time, and it should be the rule rather than the exception.”
“Every year, JDI receives hundreds of letters from transgender prisoners who endured sexual abuse while in the government’s custody,” said Lovisa Stannow, JDI’s Executive Director. “In many cases, the survivor believed that they would have been safe had they been placed in a facility that matches their gender identity. This new guidance, if adopted meaningfully, will go a long way toward ensuring the basic dignity of transgender people behind bars.”
Today, the vast majority of prison systems and local jails continue to use policies or practices that house transgender people solely based on anatomy. Some corrections agencies, such as in New York and California, have written rules to that effect. Others, such as in Colorado and Pennsylvania, have stated publicly that not a single one of their hundreds of transgender prisoners is housed consistently with their gender identity.
NCTE and JDI have long pushed for keeping transgender prisoners safer by housing them according to their gender identity, and this new guidance is a step towards achieving this goal. Following this new guidance will bring prisons and jails in line with homeless shelters, domestic violence programs, jobs programs, employers, and schools and universities — all of which are required by federal law to treat people according to their gender identity.